quiz (all areas) Flashcards
what must the claimant establish for a case in general negligence
defendant owed them a duty of care, defendant was in breach of that duty, resulting damage was a direct result of that breach
what case established a duty of care between manufacturers and consumers
Donoghue v Stevenson
name 3 common situations where there is an automatic duty of care
doctors, parents, teachers
which case established the proximity test and what is it
Caparo Industries v Dickman
reasonably foreseeable harm, proximity, just fair & reasonable
list all policy issues (6)
loss allocation, practical considerations, moral considerations, professional protection, constitutional arguments, deterrent value
when does a duty to act exist
a person has undertaken a task he has a duty to perform carefully, personal relationship, harm or loss is caused by 3rd party whom the defendant should control
list all risk factors (5)
likelihood of risk, magnitude of risk, special standards, reasons for taking risk, cost v practicality
what test does causation use
“but for”
3 situations which courts will consider for claims where the loss is not entirely foreseeable
was the kind of damage within a general category of a type of foreseeable loss, where the loss is foreseeable but the way it happened was not, where the loss is foreseeable but the extent isn’t (egg shell skull)
defences to general negligence (2)
contributory negligence, consent
how is a duty obvious (doctor to patient)
reasonably foreseeable that injury can occur if doctor fails to take care of patient
who are doctors compared to
equally qualified doctor
why is Res Ipsa Loquitur necessary in medical knowledge
difficult to establish clear sequence of events as they are usually unconscious
what must claims in nervous shock involve
an actual recognised psychiatric condition resulting from the shock of an incident
why have claims in medical negligence failed over the years (3)
medical knowledge at the time didn’t recognise the illness, fear the claimant was faking symptoms, to prevent floodgates effect
what are primary victims
people who are so in fear for their own safety that they suffer psychiatric injury
what are secondary victims
those witnessing traumatic events involving close family victims
what are rescuers
mostly professional rescuers who could not have been trained to witness these events
what did ALCOCK establish secondary victims had to prove (4)
proximity (time & space, relationship), shock resulting from witnessing event or immediate aftermath, “sudden appreciation of horrifying event”
how can a claim take place in product liability (2)
general negligence, statutory protection under The Consumer Protection Act 1987
why were claims difficult under general negligence in product liability (3)
if everyone was doing the same thing in that industry there would be no breach, sometimes nothing could be proven through causation, defences allowed
who can claim under the CPA 1987
a consumer who has suffered damage from the product
who can you claim against under the CPA 1987 (4)
producer, first importer into UK, anyone holding themselves out to be producer (own brands), abstractor of product (raw materials)
minimum limit for property damage under CPA 1987
£275 - excluding product itself
minimum limit for personal injury under CPA 1987
no lower limit
list the ways there has to be a defect under CPA 1987 (3)
design defect, manufacturing defect, failure to warn defect
what does S.3 of the CPA 1987 state courts will look at when deciding on defects (4)
advertising claims, instructions, use, is the product up to expected standards
what is the product under CPA 1987
anything that goes through manufacturing process
defences under CPA 1987 (6)
not supplied in course of business, not supplied at all, defect due to compliance with legislation, defect didn’t exist at time of distribution, state of the art, contributory negligence
what act covers lawful visitors to property
Occupiers Liability act 1957
what act covers unlawful visitors to property
Occupiers Liability act 1984
what is an occupier
no definition - usually person in charge of premises
what is premises
no definition - can include ladders & caravans
who are visitors under the OLA 1957 (3)
people invited or permitted, people using premises for purpose (including those with contractual agreement & those with legal right), implied license people
how are independent contractors relevant to occupiers liability
can be held liable if occupier took reasonable care when hiring them
what is the exclusion of liability for occupiers liability governed by
Unfair Contract Terms Act 1977
what does s2 of UCTA 1977 state
cannot exclude liability for death or personal injury resulting from negligence
what is a trespasser
“a person whose presence is unknown, or if known is practically objected to”
s1(3) of OLA 1984 - when is a duty owed (3)
if the occupier; is aware of danger or has reasonable grounds to believe it exists, knows / reasonable grounds to believe someone else is in the vicinity of that danger, risk is something which he is reasonably expected to offer some protection to
defences to occupiers liability (3)
volenti (consent), contributory negligence, taking steps to warn of the danger
what is pure economic loss
damage to wallet
how has the law developed with regards to pure eco loss (2)
allows eco loss from negligent statement, allows eco loss from negligent act
what was the 2 part test that came from Anns v Merton (2)
sufficient proximity, any policy reasons not to impose a duty
what guidelines did Murphy v Brentwood establish for pure eco loss (2)
need for special relationship, reasonably foreseeable loss from inaccurate statement
how to establish a special relationship in pure eco loss (4)
who made statement, did d assume responsibility for statement, does person making statement know who will rely on it & why it is needed, did claimant rely on statement
what is consequential eco loss
loss arises from another negligent act - easier to prove
what is pure eco loss
financial loss suffered, nothing else
what is vicarious liability
one person commits tort but someone else is held responsible
why was vicarious liability introduced (3)
employers in better position to stand liability through Employers Liability insurance, employee is protected from working for unscrupulous employer who may force them into taking risks if it didn’t exist, improves safety standards & working practices
what factors need to established to prove vicarious liability (3)
tort has been committed, person involved has employee status, tort was committed during course of employment
who is an employee
someone who performs services in return for payment
what is the control test
original test for employee status - concluded an independent contractor could be told what to do but an employee could be told what to do and how to do it
what is the integration test
looks at individuals and how central their role was to the business
what is the multiple test
combines aspects of control & integration tests - also referred to as economic reality test
what did Ready mixed concrete v ministry say had to be established for employee status (4)
payment of wage, tools provided by employer, uniform, some control over issuing orders (how work is to be done etc)
what did McKenna say had to be established for employee status (3)
provision of work in return for wage, express or implied agreement to being subject to employers control, agreement to provide personal service
what amounts to course of employment (2)
if employee is doing something that is part of his job employer will be liable, employer will be responsible for authorised act in unauthorised way
what amounts to a frolic of their own
unauthorised act which has nothing to do with their job - employer will not be liable
what is private nuisance
an unreasonable interference with a person’s enjoyment of their land / property
who can claim in private nuisance
anyone with a legal interest in the property who has suffered
what factors need to be established for a claim in private nuisance (3)
legal interest in the property, unreasonable interference with property done negligently, recklessly or intentionally, substantial interference
what do the courts look at when considering a case in private nuisance (5)
locality, duration, social utility, claimants sensitivity, malice shown
defences for private nuisance (3)
statutory authority, right of prescription
remedies for private nuisance (3)
abatement, injunction, damages
what is public nuisance
“something which affects a reasonable class of her majesty’s citizens materially or in the reasonable comfort and convenience of life”
why is public nuisance different to private nuisance (2)
tort and crime usually prosecuted by attorney general, aims to protect the health, safety, morals & convenience of public
who can claim in public nuisance
anyone who has suffered above and beyond / special damage
remedies for public nuisance (2)
criminal sanctions (prosecution by CPS), Civil sanctions (by AG injunctions, by an individual damages)
essential elements under Rylands (6)
legal interest in the land, must be something that is not naturally present, must be something that can cause danger if it escapes, must be a non-natural use of land, must show the thing escaped from land controlled by defendant onto land that is not in their control, must be reasonably foreseeable
defences under Rylands (4)
deliberate act of a stranger, act of God, statutory authority, contributory negligence
